The concept of encumbrances (restrictions) on real estate rights
The definition of the term “encumbrance” is contained in Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it.” According to the legislator, encumbrance implies the presence of certain conditions or prohibitions that limit the right holder in the exercise of his rights to real estate. Based on this definition, we can identify the main signs of encumbrance:
- Established in relation to a specific property
- May be established by regulation, decision of an authorized body or terms of a contract
- Contains a list of prohibitions for the copyright holder to exercise real rights.
When is registration of encumbrances necessary?
Since the presence of encumbrances constrains the subject in the exercise of his rights, they are inextricably linked with the fundamental right. Therefore, cases where state registration of encumbrances is mandatory corresponds to a similar procedure for the main right to a property. This rule is expressly provided for in Art. 131 of the Civil Code of the Russian Federation - any restrictions on real rights in relation to real estate are subject to registration.
The legislator establishes the identity of the concepts of “encumbrance” and “restriction” of rights, therefore, for registration purposes, both of these terms are used.
It is necessary to list the cases when registration of rights, as well as their encumbrances, is mandatory:
- Mortgage. For the purposes of mandatory registration, it does not matter whether the mortgage arises by contract or by operation of law.
- Trust management.
- Rights arising from the annuity agreement
- Arrest and other prohibitions on entering into a transaction. Installed and removed by decision of authorized bodies.
- Rights of claim presented in court proceedings
- Decision of the authorized body on the seizure of land plots from right holders
- Easements (public, private)
- Special regime for the use of land plots in sanitary protection and natural conservation zones
- Special conditions for the protection of natural objects and the environment
- Other cases provided for by law.
The above types of encumbrances have a different legal nature: some of them are related to ensuring the fulfillment of obligations, others contain direct prohibitions on the performance of legally significant actions. In addition, there are different cases of registration of encumbrance:
- Simultaneously with the registration of the fundamental right. In this case, the encumbrance arises simultaneously with the emergence of the fundamental right and is a prerequisite until the restriction is lifted
- Independently and independently of fundamental law. In this case, the encumbrance arises during the implementation of the fundamental right and is an accompanying condition for the disposal of the right
The essence of encumbrance on real estate
In the Law of the Russian Federation, the concept of “encumbrance” means a restriction of the right to a certain property. The essence of the encumbrance is that there are individuals or legal entities who, according to documents, are not the owners of an apartment, house or other immovable object, who nevertheless have certain rights to it.
Not only individuals, but also government organizations can encumber real estate. The bailiff service can seize an apartment and impose a ban on sale.
The owner of the encumbered property is deprived of the opportunity to fully dispose of it. This restriction is in effect until the apartment is completely free of encumbrances.
Before you buy an apartment, you must obtain an extract from the Unified State Register via the Internet or order it from the MFC. Find out whether encumbrances are imposed on her or not.
How is encumbrance registered in Rosreestr?
Encumbrance is imposed for various reasons in various ways. Most of the restrictions on rights are registered in Rosreestr. There are also cases when encumbrances are not registered.
Restrictions on property rights must be registered if the encumbrance is a consequence of an agreement concluded by the owner. The limitation of the right arose as a result of an act issued by a legitimate government agency. For example, the bailiff service. The property was encumbered by a court decision, regardless of the will of the owner.
Types of real estate encumbrance:
- Credit collateral. The property is pledged to the bank under a mortgage agreement.
- Installment plan. Payment of the cost of apartments occurs in installments. The property is held as collateral by the seller until the full amount is paid.
- Renting an apartment or a free use agreement registered in Rosreestr
- Trust management. An agreement was concluded between the guardian and the ward under Article 38 of the Civil Code of the Russian Federation.
- Encumbrance of rent in the case of a lifelong maintenance agreement with dependents.
- The apartment is under arrest by a court decision during the investigation or due to the debts of the owner.
In all these cases, Rosreestr contains a record of the restriction of rights. To complete a transaction with such real estate, the consent of third parties, permission of judicial or administrative authorities is required. If it is not there, then it will not be possible to re-register ownership. You can quickly order a cadastral extract on the Rosreestr website.
For example, if an apartment is secured by a loan, then it can be sold provided that the bank agrees to this. But it will be impossible to sell real estate that is under arrest.
The procedure for registering encumbrances and the list of required documents
In addition to the general requirements for the registration of real rights to real estate, the actions of the authorized bodies regarding the registration of encumbrances have the following features:
- An application for registration of an encumbrance is submitted by the person in whose favor it is established
- Registration of bans or arrests is carried out on the basis of a certified copy of the decision of the authorized bodies
- Information on registration of encumbrances entered into the Unified State Register must contain information regarding both sides of the established restriction
- The presence of a legal dispute in relation to a property entails the emergence of an encumbrance only if a judicial act is issued prohibiting the commission of specific actions to dispose of property
- When registering an encumbrance of a right, the registrar must make sure that the conditions for such a restriction are actually provided for by the terms of the contract, the norms of an act of a government body or a court decision
- Removal of a registered encumbrance is possible only upon the application of persons who were the subjects of the established restriction, as well as a decision of the authorized body to lift bans or seizures on property
Application from a legal entity
From _________________________________
(indicate the name of the legal entity)
OGRN _____________________________________
STATEMENT
Hereby _______________________________ (indicate the name of the legal entity), hereinafter referred to as the “Owner”, represented by _______________________________________, acting on the basis of __________________________________________, assures ____________________ (full name of the mortgagee / or full name of the buyer of the real estate in the genitive case) that the following real estate:
1) ________________________________________________________________________,
2) ________________________________________________________________________,
3)________________________________________________________________________,
(indicate a complete list of real estate, indicating the address of the property, cadastral/conventional numbers, other identifying characteristics: area, floor, purpose, etc.)
belongs to the Owner by right of ownership, is not encumbered with a pledge (mortgage), rent, lease, is not arrested, not transferred to trust management, my rights to it are not disputed by anyone, there are no legal claims to this property.
If the property is encumbered and/or there are disputes and/or legal claims in relation to it, then these circumstances are indicated in this application with a detailed indication under which agreements/obligations the property is encumbered (indicating the parties and details of the agreements), what disputes are being considered and in which court or what legal claims exist, after which it must be indicated that there are no other encumbrances, disputes or legal claims. Copies of agreements under which the property is encumbered and of judicial acts, certified by the signature of the property owner, must be attached to this application.
If the subject of the transaction is a separate house or several buildings, then the following information about the land plot on which the property is located is additionally indicated:
The above-mentioned real estate is located on a land plot with cadastral number __________________________________, at the address _____________________________________, land category __________________________________________, intended purpose ______________________, area _______________________.
If the plot is owned by the real estate seller, the following must be indicated:
This land plot belongs to the Owner by right of ownership, is not encumbered with a pledge (mortgage), lease, is not arrested, is not transferred to trust management, my rights to it are not disputed by anyone, there are no legal claims to this plot.
If the land plot is encumbered and/or there are disputes and/or legal claims in relation to it, then these circumstances are indicated in this application with a detailed description under which agreements/obligations the plot is encumbered (indicating the parties and details of the agreements), what disputes and in which court are considered or what legal claims exist, after which it must be indicated that there are no other encumbrances, disputes or legal claims. Copies of agreements under which the plot is encumbered and judicial acts on existing disputes, certified by the signature of the owner of the plot, must be attached to this application.
If the plot is leased from a real estate seller, the following must be indicated:
This land plot belongs to the Owner on a lease basis in accordance with lease agreement No.______ dated “___”______________, concluded from ________________________ for a period of _______________. The right to lease the land plot has not been terminated. The plot itself and the right to lease it are not encumbered with a pledge (mortgage), not arrested, not transferred to trust management, the right to lease the plot is not disputed by anyone, there are no legal claims or disputes in relation to this land plot and in relation to the right to lease it, debt on There is no payment of rent.
If the right to lease a land plot is encumbered and/or there are disputes and/or legal claims in relation to it, then these circumstances are indicated in this application with a detailed description under which agreements/obligations the right to lease a plot is encumbered (indicating the parties and details of the agreements), what disputes and in which court they are being considered or what legal claims exist, after which it must be indicated that there are no other encumbrances, disputes and legal claims both in relation to the site and in relation to the right to lease it. Copies of agreements under which the right to lease the site and judicial acts on existing disputes are encumbered, certified by the signature of an authorized person of the owner of the site, must be attached to this application.
If the plot belongs to the owner of the real estate under a different right (in addition to the right of ownership and the right to lease), then the type of this right and the relevant documents on the basis of which the seller of the real estate owns the right to the land plot are indicated.
________________________________________________________/________________________________________________/
signature of the Owner’s manager or the Owner’s representative by power of attorney (in this case, a power of attorney must be provided)
"___"_________________________G.
Legal consequences of registration of encumbrances and evasion from it
The fact of state registration of an encumbrance and the entry of relevant information into the Unified State Register implies the emergence of a set of restrictive measures for the disposal of property rights. The main legally significant consequence of registering an encumbrance is a complete or partial ban on performing administrative transactions in relation to the property.
In the case of applying for registration of transactions for the disposal of property in respect of which an encumbrance has been established, the registration authorities, during a legal examination of the submitted documents, establish the fact of restrictions by obtaining information from the Unified State Register. This will be the basis for refusing to register the transfer of rights under the transaction.
Information about the registered encumbrance is entered into the Unified State Register and is inextricably linked with the main right to the property. Any information received from the Unified State Register in relation to this object will necessarily contain an indication of the established encumbrance.
The established encumbrance remains in force until such a restriction is lifted by performing the appropriate registration actions.
In case of evasion of registration of an encumbrance, the person in whose favor this restriction exists, or the state body that issued the act of imposing the ban, has the right to demand the commission of such an action. This requirement can be asserted in court.
Also, evasion of registration of an encumbrance may entail a change in the fundamental right to the property, if the condition for the occurrence of this restriction was a mandatory condition of the transaction or was provided as the basis for issuing an act of the authorized body for the disposal of the property.
